Madras High Court
Kaliammal (Died) vs Rathinam on 1 October, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
C.R.P.No.3356 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.3356 of 2024
and C.M.P.No.18010 of 2024
Kaliammal (Died)
R.Mohanasundaram ... Petitioner
Vs
Rathinam ... Respondent
PRAYER : Civil Revision Petition filed under Section 115 of the Civil Procedure
Code, pleased to set aside the fair and final order dated 07.02.2024 in I.A.No.309
of 2018 in O.S.No.111 of 2010 on the file of the Sub Court, Perundurai.
For Petitioner : Mr.S.Kaithamalai Kumaran
For Respondent : Mr.B.Singaravelu
ORDER
This Civil Revision Petition has been filed against the order passed by the
learned Subordinate Judge, Perundurai, in I.A.No.309 of 2018 in O.S.No.111 of
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2010 on 07.02.2024.
2. The brief facts of the case is that the petitioner is the 2nd defendant in the
suit filed by the respondent/plaintiff in O.S.No.111 of 2010 on the file of the Sub
Court, Perundurai, for partition and permanent injunction. When the case was
posted for cross examination of PW1 on 12.07.2017, the defendants did not cross
examine PW1 and thereafter, an ex parte judgment came to be passed on
02.08.2017. On coming to know about the same, the petitioner had filed a petition
in I.A.No.309 of 2018 under Section 5 of the Limitation Act to condone the delay
of 224 days in filing the petition seeking to set aside the ex parte decree. The
petitioner/2nd defendant had contended that since he was suffering from viral fever,
he was unable to cross examine PW1 on 12.07.2017. The respondent had filed a
counter contending that the petitioner had knowledge about the ex parte decree
and he had also appeared in yet another suit in O.S.No.149 of 2011 through the
very same counsel and that he had filed the petition with delay only to drag on the
proceedings. The trial Court, finding that no sufficient cause had been shown by
the petitioner, had dismissed the application in I.A.No.309 of 2018 vide order
dated 07.02.2024. Aggrieved over the same, the present revision petition has been
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filed by the petitioner.
3. The submissions of the learned counsel for the petitioner are as
follows :-
3.1. When the suit filed by the plaintiff/respondent in O.S.No.111
of 2010 was posted for cross examination of PW1 on 12.07.2017, the petitioner
was suffering from viral fever and thereby, he was unable to appear before the trial
Court. Despite furnishing of the Doctor certificates Ex.P1 to Ex.P3 to show that
the petitioner was suffering from viral fever on 10.07.2017, 02.09.2017 and
24.01.2018, the trial Court erred in not accepting the same.
3.2. It is true that the petitioner had appeared in another suit on
18.12.2017, whereas, subsequently, he was affected with fever on 24.01.2018,
therefore, he was unable to file the petition on time. Only due to the illness of the
petitioner, there was a delay of 224 days in filing the restoration petition.
3.3. The word “sufficient cause” should be given liberal
construction so as to advance sustainable justice when there is no inaction or
negligence nor want of bonafides. The rules of limitation are not meant to destroy
the rights of parties.
3.4. The petitioner and the respondent are siblings and that by
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condoning the delay, no prejudice would be caused to the respondent. The
petitioner has also undertakes to compensate the respondent for the inconvenience
caused on her and the petitioner is also ready to cooperate for the speedy disposal
of the trial.
3.5. Subsequently, consequent to the death of the petitioner's
mother, the respondent has also filed an application for modification and if the ex
parte decree is set aside, all the issues can be settled in the trial. Hence, he prayed
to set aside the order passed on 07.02.2024 in I.A.No.309 of 2018
4. The respondent has filed a detailed counter.
5. Learned counsel for the respondent has stoutly and vehemently opposed
the present petition stating that though the petitioner is the brother of the
respondent, he in order to deny the rights over the property to the respondent, has
delayed the progress. He further submitted that the though the petitioner claims
that he was suffering from viral fever on 17.07.2017, he had appeared in yet
another suit on 18.12.2017 through the very same counsel and therefore the trial
Court, rightly finding that the petitioner had not shown any sufficient cause, had
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dismissed the petition.
6. Heard both sides and perused the materials available on record.
7. It is seen that the petitioner and the respondent are siblings and the suit
has been filed for partition. Though there had been a lapses on the side of the
petitioner, this Court is of the opinion that since it is a suit for partition, one
opportunity may be given to the petitioner in the interest of justice to defend his
case.
8. In view of the above, this Civil Revision Petition stands allowed and the
order dated 07.02.2024 in I.A.No.309 of 2018 in O.S.No.111 of 2010 on the file of
the Sub Court, Perundurai, is hereby set aside and the delay of 224 days in filing
the petition seeking to set aside the ex parte decree is condoned on condition that
the petitioner deposits a sum of Rs.15,000/- before the trial Court as costs within a
period of two weeks from the date of receipt of a copy of this order. On such
deposit being made by the petitioner, the amount shall be disbursed to the
respondent on her appearance.
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9. Further, the petitioner shall also file an Affidavit before the Court
concerned undertaking to cooperate for the speedy disposal of the suit in
O.S.No.111 of 2010. The trial Court shall take every endeavor to complete the
trial as expeditiously as possible, preferably, within a period of six months from
the date of receipt of a copy of this order. Consequently, connected miscellaneous
petition is closed. No costs.
01.10.2024
Note : Registry is directed to return the original papers to the
counsel for the petitioner
Index : Yes / No
Neutral Citation : Yes / No
ham
To
The Sub Court, Perundurai.
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A.D.JAGADISH CHANDIRA, J.
ham
01.10.2024
https://www.mhc.tn.gov.in/judis
